ORDER SHEET

IN THE HIGH COURT OF SINDH, CIRCUIT COURT LARKANA

Crl. Misc. Appln. No.  26 of 2009.           

 

Date

Order with signature of Judge

 

For Katcha Peshi.

20.03.2009.

                        Mr. Javed Ahmed Deenari, Advocate for applicant.

                        Mr. Muhammad Akram Shaikh, State counsel.

~~~~~

 

                        This application has been moved against impugned order dated 03.01.2009, passed by learned 1st Civil Judge and Judicial Magistrate, Kandhkot, on police report under section 173 Cr.P.C, in crime No. 266/2008, of P.S A-Section Kandhkot, whereby the learned Magistrate has accepted and approved the report submitted by the I.O and the case has been ordered to be disposed of under false class.

 

                        The facts of the case as narrated in F.I.R are that on 22.11.2008, the applicant/ complainant Qamaruddin lodged F.I.R with P.S A-Section Kandhkot; in the following wording:

 

                        “On 10.11.2008, at 08.00 hours in the night, I was present in my house alongwith Liaquat Ali and nephew Saifuddin. All of sudden door was knocked, I opened the door, one police mobile was standing and every one accused ASI Azhar Ali Channa, ASI Abdul Qadir Bhangwar and driver Jani Domki and one unidentified police constable being armed with government rifles in their hands were therein, forcibly entered in my house by saying that we shall arrest you and started causing kicks and fists blows to me and broke the house hold articles and constable forcibly robbed cash Rs.2000/-, one Nokia mobile worth Rs.3000/- from my pocket and cash Rs.5000/- one Nokia mobile phone worth Rs.25000/- from pocket of my son Liaquat Ali and cash Rs.2000/- and one Sony Ericsson mobile phone worth Rs.3500/- from my nephew Saifuddin and threatened that if any complaint is made to our high ups you will be booked in false cases, thereafter all the accused went by a police mobile”

 

 

                        It is contended by the learned counsel for applicant that after registration of F.I.R, investigation police submitted the report for cancellation of present case in cancelled class “B”, which is illegal as the prosecution witnesses who are eye witnesses of the case have fully supported the version of the complainant. He further submitted that complainant went for lodging of F.I.R without loss of time but his F.I.R was not lodged as the accused were police officials, then application was moved to the D.P.O Kandhkot, but no result come out from there, then the applicant got the orders from learned Additional Sessions Judge Kandhkot and F.I.R was registered.  He has further stated that specific role of the accused police officials has been attributed in the commission of offence. Police officials being armed with government rifles, forcibly entered in the house of applicant and committed robbery. He has contended that the I.O of this case was dishonest and has supported the police officials and has suppressed the facts. Learned counsel further contended that two independent witnesses have supported the version of the complainant in their statements recorded under section 161 Cr.P.C. He further states that the learned Magistrate inspite of the two applications moved by the applicant before him did not record statements of the prosecution witnesses in order to ascertain the truth.  The learned advocate for the applicant contended that the order passed by the learned Magistrate is partial and it smells influence and coercion for favoring the accused.

 

                        Learned State counsel has submitted that the impugned order from face of it seems to be not in accordance with law.

 

                        I have gone through the case papers and perused two applications moved by applicant before learned Magistrate. One application does not bear date, whereas other has a date i.e. 04.12.2008, and order passed thereon by learned Magistrate on 6th December, 2008 and his application was not entertained by the learned Magistrate in respect of recording the statements of the eyewitnesses of the incident. Which reveals that the learned Magistrate has not applied judicious mind and has acted contrary to law, and relied upon the police official’s statements, namely, PC Khalid, PC  Mumtaz, PC Mohammad Aslam and PC Fazal Mohammad, who were not the eyewitnesses of the incident. Order of the learned 1st Civil Judge & Judicial Magistrate, Kandhkot, is hereby set-aside and learned Sessions Judge Kashmore  Kandhkot is directed to transfer this file from court of learned1st Civil Judge & Judicial Magistrate, Kandhkot to some other Magistrate, who shall record statements of eyewitnesses in the court and pass the appropriate order in the light of the statements of the eyewitnesses. With these observations this application stands disposed of.

 

 

                                                                                                            Judge